In July 1944, as World War II raged on, Congress passed a law to permit renunciation of U.S. citizenship by persons physically present in the U.S., which up to then had not been possible. The law was one of many aimed at interned Japanese Americans; it was a significant break from the earlier attitude, expressed as far back as Talbot v. Janson in 1795, that the U.S. should not allow loss of citizenship in wartime. The Seattle Times has more on the effects of this sordid provision in their 2004 article on the topic.
Surprisingly, the latest immigration reform bill in the Senate proposes the repeal of this law; see § 3713 (page 645) of the Border Security, Economic Opportunity, and Immigration Modernization Act. This odd historical provision probably has very little effect on Isaac Brock Society readers and other former U.S. persons — most of whom instead relinquished or renounced after moving abroad and naturalising as citizens of their new homes or taking up government employment there. But read on if you’re interested in the gory details and the rationale behind the repeal …
Why repeal it now?
The specific law in question is INA § 349(a)(6) (codified at 8 USC § 1481(a)(6)); it states:
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality …
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense
None of the “Gang of Eight” seems to have spoken about their reasons for wanting to repeal this provision, but judging from the text of the relevant portion of their bill, their motivation is clearly not symbolic redress of past wrongs against Japanese Americans:
Sec. 3713. Preventing criminals from renouncing citizenship during wartime.
Section 349(a) (8 U.S.C. 1481(a) is amended—
(1) by striking paragraph (6); and
(2) redesignating paragraph (7) as paragraph (6).
The reference to “criminals” in the section title suggests that it’s related to the case of convicted sex offender James J. Kaufman. For those of you who aren’t familiar with Kaufman, The National Law Journal has a summary of his case; in short, after six years of lawsuits, the DC District Court ruled in February 2010 that the U.S. was indeed in a “state of war” for purposes of 8 USC § 1481(a)(6), and ordered USCIS to handle Kaufman’s case with that fact in mind. The Department of Justice abandoned their appeal against the ruling half a year later, and there have been no updates since then.
What happens if you renounce under this law?
It’s unclear how U.S. Immigration & Customs Enforcement would treat a person who renounced citizenship under this probably-soon-to-be-repealed law. A former dual citizen’s country of other citizenship would be obligated under international law to accept them for deportation — indeed, the whole goal of 8 USC § 1481(a)(6) in the first place was to give the U.S. government the means to harass & harangue as many Japanese Americans as possible into renouncing citizenship as possible, so it could deport them to Japan. However, statelesspeople, regardless of whether or not they were former U.S. citizens, could only be deported if the State Department were able to cajole or threaten another country into admitting them — witness the case of the Uyghurs formerly held at Guantanamo Bay, who have been resettled in impoverished U.S. allies like Albania and Palau.
In the past forty years I’m only aware of one attempted deportation proceeding again a former U.S. citizen — Thomas Jolley, a Vietnam War protestor. Since Congress restricted itself to authorising “military engagement” rather than actually declaring war on North Vietnam like the Constitution tells them to, and there were no District Court rulings on the meaning of “state of war” at the time, Jolley did not renounce under 8 USC § 1481(a)(6), but actually took the trouble to become a landed immigrant in Canada and renounced there under 8 USC § 1481(a)(5) instead — but then he quit his job in Toronto and snuck back down to Florida. It’s unclear what happened to him in the end, since he seems to have dropped out of the historical record after a 1973 private bill for his relief died in committee (it would have at least delayed his deportation while it was being considered).
Furthermore, due to modern Supreme Court rulings like Zadvydas v. Davis, ordinary renunciants pending deportation, unlike alleged “enemy combatants”, could not be detained indefinitely but only for a limited period. They would eventually have to be set free to go about their lives in the U.S. until deportation could be arranged — or, more likely, until they got their U.S. citizenship back, as happened in the case of Joel Slater. Slater renounced in Australia rather than the U.S., but almost immediately after his renunciation Australia deported him, he ended up getting a humanitarian parole back into the U.S., and six years later the Department of State gave him back his citizenship.
Finally, contrary to misinformed ranting often seen in the comments sections of serious articles about renunciation of citizenship, renouncing U.S. citizenship and becoming an “illegal immigrant” while staying in the U.S. is not a way to get out of paying U.S. taxes — since someone who meets the substantial presence test is required to pay taxes and file information returns in the same way that a citizen is, regardless of their immigration status.